York v. Alho, 5902

• Decision Date: 05 December 1932
• Docket Number: 5902
• Citation: 52 Idaho 528,16 P.2d 980
• Parties: E. H. YORK, Appellant, v. EDWARD ALHO, Respondent
• Court: Idaho Supreme Court

16 P.2d 980

52 Idaho 528

E. H. YORK, Appellant, v. EDWARD ALHO, Respondent

No. 5902

Supreme Court of Idaho

December 5, 1932

AUTOMOBILES-COLLISION-NEGLIGENCE-DOCTRINE OF LAST CLEAR CHANCE.

1. Whether speed of defendant's truck, traveling fifteen to twenty-five miles per hour, was reasonable, in view of movement of plaintiff's automobile when striking icy pavement, held for jury (Laws 1927, chap. 260, sec. 4, subd a, and subd. b, par. 8).

2. Liability, under doctrine of last clear chance, of driver of truck for injuries to plaintiff, whose automobile struck icy and slippery pavement and collided with truck, held question for jury.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Action for damages for personal injuries. From a judgment upon directed verdict plaintiff appeals. Reversed and remanded.

Reversed and remanded. Costs to appellant.

Robert E. Brown and N.D. Wernette, for Appellant.

The general rule that the mere happening of an accident is not evidence of negligence does not mean that negligence may not be inferred from facts and circumstances which surround its occurrence. (Wilbur v. Home Lumber & Coal Co., 131 Ore. 180, 282 P. 236.)

A last clear chance to avert injury means that last clear chance which one has, that another in peril does not have, to avoid danger. (Thompson v. Collins, 139 Wash. 401, 247 P 458. See, also, 20 R. C. L., secs. 114-119, p. 138.)

One who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligence of the other party is considered in law to be solely responsible for such accident, although the acts of the person injured may have been the primary cause of the injury, yet an action for such injury may be maintained where it appears that by the exercise of reasonable care and diligence defendant might have avoided the consequences of the injured party's negligence. (Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254. See, also, Anderson v. Great Northern R. R. Co., 15 Idaho 513, 99 P. 91; 20 R. C. L., secs. 114-119, p. 138.)

Cannon, McKevitt & Fraser and Robert M. Cummins, for Respondent.

As stated before, plaintiff throughout this case and in his brief has indicated various actions that might have been taken on the part of the driver of the defendant's truck which, had they been performed, would have averted the accident. In other words, the plaintiff states that because everything possible was not done by the driver of the truck to have avoided the accident, he is, consequently, guilty of actionable negligence. That this is not the law is firmly established by the case of Sharkey v. Sheets, 87 Cal.App. 99, 261 P. 1049.

In this connection we would like to call the court's attention to the rule applicable in cases of this kind as to the demands made of a person when placed in a position of apparent peril or danger. The rule is stated in the case of Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347.

GIVENS, J. Lee, C. J., and Budge, Varian and Leeper, JJ., concur.

OPINION

GIVENS, J.

Appellant was driving his own automobile west from Wallace to Kellogg on the Yellowstone Trail, the paved portion being approximately 18 feet wide, with a graveled berm extending on each side about six feet, sloping gradually to the natural soil which was gravelly and frozen, it being about 75 feet from the pavement to the fence on the south side of the road, about 10 o'clock A. M., November 23, 1928, at a speed variously estimated at from 15 to 35 miles per hour. On a slight downgrade where the pavement was covered with ice and slippery from rain and sleet which had fallen the preceding evening, appellant's car skidded, swayed from side to side on the roadway, turned around, and thus out of control careened a distance of from 150 to 200 feet, where it collided with defendant's truck, heavily loaded with concentrates, traveling east, shoving appellant's automobile about 60 feet from the point of contact, demolishing it, and inflicting on him severe physical injuries.

Appellant's claim for damages is based on the contention that respondent's agent, who was driving the truck concededly on his master's business, was negligent in not slowing down, stopping the truck before the collision, or turning the truck to the right so as to avoid appellant's car.

At the conclusion of all the evidence, a motion for a directed verdict in favor of defendant was granted. From such verdict and judgment based thereon this appeal is taken.

Both parties are in agreement that a motion for a directed verdict should be denied unless there is no substantial evidence on any question of fact about which reasonable minds might differ, and the converse. Respondent contends that there was no evidence to support any charge of negligence as to the rate of speed of his truck, because being only 15 to 25 miles per hour, it was within the legal limit. However, while such speeds are within the legal limit, 35 miles per hour (subsec. 8, sec. 4, art. 2, chap. 260, p. 486, Sess. Laws 1927), the statute likewise provides that:

"Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater then is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb or property of any person." (Sec. 4, art. 2, chap. 260, Sess. Laws 1927; Brixey v. Craig, 49 Idaho 319, 288 P. 152; 3 Cal. Jur., p. 843 et seq., 42 C. J., p. 924.)

Whether, therefore, the speed of the truck was careful and prudent in view of the gyrations of appellant's car along and across the road, and the condition of the surface and width of the highway, were questions of fact for the jury, and reasonable minds might well differ thereon.

When appellant's car began to skid, respondent's truck was about 500 or 600 feet away. Respondent estimates that only 18 seconds elapsed, and contends that time and distance were too short for respondent's driver to have apprehended appellant's peril, or have acted other than he did. However, respondent's own witness Ferris, who was not driving on the highway and was not in any way concerned with the vehicles thereon, testified that he was in a field adjoining the scene of the accident, where he was directing or watching two of his employees clearing ground and hauling wood to his house, and that these employees had time to notice and tell him that an accident impended, and for him to turn and observe what was going on.

"Q. You went down there to look over the operation of whatever you were doing?

"A. I had started out to where the two men were working in the flat.

"Q. Were you walking toward the highway or away from it?

"A. No, away from it at the present time.

"Q. And then what happened?

"A. I heard some of the boys say there is going to be a wreck--

"Q. You can't tell what you heard the boys say, did you actually see these two cars come together?

"A. I did.

"Q. You can take your seat now. When you first noticed the York car, if you did notice it, describe to the jury what you saw in your own language?

"A. After I turned around and looked towards the highway I noticed Mr. York's car, it was coming down from Wallace I noticed the truck coming, from Kellogg, going east, I noticed Mr. York's car, I judge around five hundred and fifty or six hundred feet, that he was going from one side of the road to the other and he did at one time turn completely around on the road, that was at...